Trade union recognition

These changes are aimed at making it easier in practice for trade unions to secure recognition in workplaces where staff want union representation. 

What is the current law? 

The current law sets out detailed steps for how trade unions can apply for and be granted recognition by employers. In particular, the current law requires that in the ballot for workers to decide if they want a union to be recognised to represent them, not only must the majority of votes cast be in favour of recognition, but also at least 40% of the entire group eligible to vote (not just those who actually did vote) must have voted in favour.  

On top of this, before they can apply for recognition, the union must show that at least 10% of the ‘bargaining unit’ (i.e. the group the union seeks to represent) are union members, and also that the majority of the bargaining unit are likely to be in favour of recognition. 

In practice, this sets quite a high bar for a union to achieve recognition status. 

What is changing? 

The ERA will amend these rules, to simplify the process and make it easier for a union to achieve recognition. In particular: 

• The 40% “turnout” requirement will be removed – so that recognition will depend only on a simple majority of votes cast. 

• The minimum membership threshold before a union can apply for recognition will be reduced from 10%. The exact figure has not been confirmed yet, but it could be as low as 2%, and the union will no longer have to show that a majority are likely to support recognition before applying. 

How will it work in practice?  

The Act introduces clearer and stronger guidelines against either party, union or employer, engaging in ‘unfair practices’ once an application for recognition is accepted (currently this only applies once a ballot is arranged). This includes any actual or threatened dismissal, disciplinary action or detriment against workers, financial offers or incentives to vote a certain way in the ballot or exercising coercion or other undue influence on the worker’s vote.  

Either party can raise a complaint with the Central Arbitration Committee (CAC) that the other party has engaged in unfair practices, and if this complaint is upheld the CAC may decide to grant or refuse recognition without further ado or organise its own secret ballot. 

Employers will therefore need to be very careful not to deter staff from speaking to a union or from voting in a particular way. Offering incentives, threatening negative consequences, or disciplining staff because of their union involvement could lead the CAC to grant recognition automatically. The ERA also fixes the workers in the bargaining unit as those in it on the date the recognition request is made, to avoid attempts to dilute the union membership or likely support for recognition within the group. 

A union is likely to consider it valuable to be able to communicate with workers during the process of applying for recognition and preparing for a ballot. The ERA will introduce a new system of formal ‘access agreements’, which can be used for this and similar purposes. These will be introduced in October, so will be explained more fully in our next update. Where an access agreement is entered into in these circumstances, you must not offer inducements or make threats against workers for seeking to attend meetings with the union, and the CAC has the power to respond to any such inducements or threats by granting the union recognition without further ado. 

What do I need to do now? 

• If a union is active or emerging in your workplace, train managers on what they should and should not say or do. 

• Take early advice if you receive a recognition request or (from October) access agreement proposal.